The Supreme Court of Canada may soon confront a constitutional crisis due to recent legal actions by the federal government. Earlier this week, Attorney General Sean Fraser announced that the Carney government has filed an intervention regarding Quebec’s secularism law, known as Bill 21. However, the federal government is not challenging the law itself. Instead, it is asking the court to impose new limitations on the use of the notwithstanding clause.

The notwithstanding clause, found in Section 33 of the Charter of Rights and Freedoms, allows legislatures to protect laws from judicial review for a renewable five-year period. This clause was a crucial part of the negotiations that led to the adoption of the 1982 Constitution. It was included to ensure that Canada maintained a connection to the British tradition of parliamentary supremacy and to provide a safeguard against judicial overreach.

Historically, the Supreme Court has interpreted the notwithstanding clause as not allowing for substantive review of legislative policy. In a 1988 ruling, the court stated that once the clause is invoked, it is not the role of the courts to evaluate the legislation's compliance with the Charter.

The federal government’s recent intervention, however, suggests a significant shift in this interpretation. The government argues that courts should not enforce the notwithstanding clause if it results in “irreparable impairment” of Charter rights or removes essential means for exercising those rights. This position raises concerns about the potential for the judiciary to overstep its bounds and undermine the legislative process.

Additionally, the government contends that courts should be able to determine whether a law violates Charter rights, even when the notwithstanding clause is invoked. This could lead to increased litigation, as individuals may seek court opinions on laws protected by the clause, challenging the traditional approach to constitutional adjudication.

The proposed changes to the notwithstanding clause would prevent its use in ways that could irreparably harm Charter rights or extend its application for a prolonged period. However, the definitions of these terms remain ambiguous, as acknowledged by the government’s legal team, which stated that the Supreme Court need not establish a definitive test for these concepts.

The implications of these legal arguments could fundamentally alter the balance of power between the judiciary and the legislature in Canada. If the Supreme Court accepts the federal government’s position, it may open the door to extensive judicial review of laws that have previously been shielded by the notwithstanding clause, potentially leading to a significant shift in Canada’s constitutional framework.